1704078 (Refugee)

1704078 (Refugee) [2021] AATA 5267 (12 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704078
COUNTRY OF REFERENCE:                   Japan
MEMBER:Paul Windsor
DATE:12 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 November 2021 at 2:45 pm
CATCHWORDS
REFUGEE – Protection visa – Japan – threats of harm from yakuza relative – health issues – senior age – immediate family in Australia – delay in seeking protection – previous visits to Japan for work – compassionate reasons – seniority of age, health issues and lack of immediate family in Japan – referred for ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 351, 417, 499
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Japan, applied for the visa on 9 September 2016.
In her protection visa application the applicant indicated she was born on [date] in Fukuoka, Japan. She stated she is a Buddhist. She indicated she married in May 1964 and was divorced in 1969. The applicant indicated that she has a sister and an adopted son and their families in Australia and has been visiting them since 2005. She indicated she last arrived in Australia [in] September 2013, entering on a visitor visa.[1]
[1] See the Departmental file.
In her application the applicant stated that one of the reasons she left Japan was that she was worried about threats against her by a distant (non-blood) relative who is a Yakuza member and had been seeking to extort money from her.[2]
[2] See the Departmental file.
The delegate refused to grant the visa, finding they were satisfied there are effective protection measures available to the applicant in Japan and, therefore, that the applicant does not have a well-founded fear of persecution, and consequently is not a refugee as defined in s.5H of the Act. The delegate also found that the applicant could obtain, from Japanese authorities, protection such that there would not be a real risk she will suffer significant harm, and consequently, that she is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
The applicant applied to the Tribunal for review of this decision on 7 March 2017. She provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal by video-link on 12 October 2021. The applicant’s adopted son, , and her niece[also] gave evidence at the hearing. The hearing was conducted with the assistance of an interpreter in the Japanese and English languages.
The applicant was represented by her Australian Legal Practitioner. The representative participated in the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims, as set out in her protection visa application, are summarised as follows:
·She left Japan to join her sister and her sister’s husband, and her son and niece in Australia.
·One of the reasons she left was she was worried about threats against her, including threats of violence, by a distant relative (not by blood), [Mr A], who is a Yakuza member and was trying to extort money from her. Joining the rest of her family in Australia was an opportunity to get away to safety.
·She fears if she returns to Japan and [Mr A] discovers this he will resume making threats and trying to harm her.
·She experienced harm in the form of threats, stalking and intimidation of physical harm.
·The son of her aunt, [Mr B], died in mysterious circumstances aged [age]. He was the victim of threats by [Mr A], who said he had a gun and intended to harm all family members who were in his way (to get the money).
·She sought help from a lawyer and advised the police but they said as there is no evidence of physical harm they would not press any charges or become involved.
·It would have been difficult to move to another part of the country, especially as the rest of the family was moving to Australia. She has no one back in Japan and no place to stay now.
On 29 September 2021 the representative forward a copy of advice from the applicant’s physician indicating that he has determined that the applicant has mild dementia. He indicated that she understands the visa process and he believes she has the capacity to participate in the hearing.[4]
[4] See the Tribunal file.
On 5 October 2021 the representative provided a pre-hearing submission and relevant supporting documents.[5] The supporting documents comprised:
·A letter of support (and English language translation) from [Ms C], dated 10 October 2016. The letter indicates that the author knows the applicant and her sister [and] is currently renting their house. The author comments on their knowledge of the problems of the applicant’s aunt with [Mr A], indicating that she understands that [Mr A] had been appointed as the legal guarantor of [Mr A’s] family and had sold the applicant’s aunt’s house and ‘syphoned off’ most of the proceeds of the sale, so there was nothing the applicant and her sister [could] do. The author states that later the applicant and her sister also became the target of threats, and when the author moved into their house, her family changed the phone number due to receiving frequent silent calls. The author states that for one or two months they also saw a suspicious car parked in front of the house with someone inside trying to look into the house. She indicates they were concerned as they had heard the Yakuza had been involved in the problem with the aunt’s situation. The author indicates that, at the request of the applicant and her sister, she provided some personal care for their aunt (between 2012 and 2015) and met their aunt’s son [Mr B]. She comments that, apparently, he and his father had been punched and beaten but did not report the matter to the police due to being threatened. She notes [Mr B] had some mental health issues and lived at a facility, and indicates that one day, when she inquired about his whereabouts, she was shocked to be told he had died of pneumonia. She indicates that [Mr A] made her feel very uncomfortable and afraid and she decided she could no longer provide care for the applicant’s aunt.
·A letter of support (and English language translation) from [a named person], dated 17 September 2016. The letter indicates that the author has been a long-time friend of the applicant’s sister[and] also knows the applicant. The author indicates that, about seven years ago, her husband introduced [the applicant’s sister] and the applicant to a detective in relation to their seeking advice regarding their aunt who was being targeted and scammed by an organised crime group. The author indicates she does not know any detail of the outcome as her husband has since passed away but comments that Japanese Yakuza use small-time hoods to do very bad things.
·An undated letter of support (and English language translation) from [Ms D]. The letter indicates that the author is a friend of the [applicant]. The author indicated that they recommended that the applicant go to the police regarding phone calls and threats from [Mr A] in relation to the case of the applicant’s [aunt] (and her husband [and] son, [Mr B]), but comments the police were no help as they advised they could only act if there was an actual assault. It is also claimed that [the applicant’s sister]’s son [Mr E] had found out that [Mr A] was being backed by the Yakuza.
·A letter of support (and English language translation) from [a] member of the [City 1] City Council, dated [September] 2016. The letter indicates that the author is writing at the request of [the applicant’s sister] to corroborate the matter she sought his advice on when she was living in Japan. The author indicates they understand [the applicant’s sister] met with a lawyer as part of a free legal advice service provided by a faction of the council. The author also comments on organized crime groups in Fukuoka, including [City 1] City, which he describes as ‘quite serious’.
·A copy of a medical referral by the applicant’s physician for a variety of medical tests.
·A document entitled ‘[deleted]’ regarding the applicant and her adopted son, prepared by [the] applicant’s niece (daughter of [the applicant’s sister] and [Mr E]’s biological sister. This provides a family tree and background explaining the relationships between the different family members (including that [Mr E], the applicant’s adopted son, is the biological son of the applicant’s [sister]). The document comments that the applicant is suffering from concern about having to return to Japan and fear of dying alone and has been suffering from nightmares and insomnia. The document notes that the applicant applied for a Class DG, subclass 864, Aged Contributory Parent visa on 1 July 2014, which was refused on 23 September 2014 and that decision was affirmed by the AAT on 16 March 2016. The document indicates that on 28 June 2016, the applicant was advised that a subsequent request for Ministerial Intervention under s.351 of the Act was unsuccessful. An attached medical report, dated 17 August 2016, indicates the applicant was diagnosed as suffering from a significant depressive illness (reportedly suffering continuing episodes of panic attacks and getting disturbing dreams that wake her), associated with stress and the difficulties in her social situation and the possible loss of family supports.
[5] See the Tribunal file.
In her submission, the representative, while commenting that they are instructed the application for a Protection visa was not without merit, submits that the matter is one that comes within the relevant Ministerial guidelines for the purposes of intervention under s.417 of the Act. The representative cites three grounds that are deemed to be most relevant to the applicant. It is noted that, under Australian migration law, even though the adoption is recognised in Japan, the applicant could not meet the definition of an Aged Parent, sponsored by her adopted son, because he was aged [age] years at the time of the adoption. Australian migration law specifies that an adoption is not regarded as an adoption for migration law purposes if it took place after the adoptee turned 18 years of age.
Findings and reasons
Identity
On the basis of the copy of her Japanese passport submitted to the Department,[6] the Tribunal accepts that the applicant is a national of Japan and that her identity is as claimed. The Tribunal accepts that Japan is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[6] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Japan, there is a real risk she will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
Evidence from the hearing
Noting the applicant indicated in her protection visa application that she has [an age] year old biological son (born [date]), [an age] year old sister (born [date]) and [an age] year old brother (born [date]) living in Japan, the Tribunal asked her about these relatives. She said she is not in contact with any of them. The applicant indicated that her son was adopted by her parents, her brother was estranged from his three surviving older sisters because he enjoyed their parents attention more than they did and the sisters felt a bit abandoned by their parents. She said she is not in contact with her sister in Japan because they did not get along as children and her sister subsequently went to live far away.
The applicant indicated that before she came to Australia she lived with her sister [in] [City 1] city in Fukuoka Prefecture. Noting that in her letter of support of 10 October 2016, [Ms C] indicated she was living in that house, the Tribunal asked if they still have that house. The applicant said she believes her sister sold it and it does not exist anymore as the new owner demolished it. She indicated she was not sure when [Ms C] ceased living there.
The applicant confirmed that she receives a pension from the Japanese government, based on premiums she paid during her working [life].
The applicant confirmed that her sister [is] an Australian permanent resident, having been sponsored by her daughter[for] a Contributory Aged Parent visa, which was granted in 2014.
The Tribunal asked the applicant to tell it about the threats against her mentioned in her application. She commented that her memory is quite vague but said there was a bad man who was trying to take over their grandmother’s house. She said he was bullying and harassing all of their relatives, adding that she and her sister were closest to their grandmother. The Tribunal asked when the threats started. The applicant could not recall, stating her memory is vague. She said the man caused so much trouble. She added that it was when he demanded money from them that they ran away.
When asked why he demanded money from her she said the man was related to the husband of their aunt, who was scared of him. She said because their aunt tried to avoid him he targeted her and her sister. She said he told them they either had to pay money to him or hand over the estate. She added that they went to 3 different police stations but were told by police that they could not help them unless somebody was harmed or killed.

When asked why this man thought she and her sister had the power to hand over their grandmother’s estate, the applicant said he is the son of the brother of their aunt’s husband and claimed the title. She added that legal advice was that he is not entitled to the property and nor is she or her [sister]. The applicant indicated that her aunt was confused and was in a nursing home and has now passed away. She said she does not know what happened to the property in the end.
The Tribunal asked the applicant why she thought this man might continue to pursue her and her sister. She said she did not know, commenting that he claimed the entitlement, she sought legal advice and the lawyer said the man was a ‘con-artist’. She reiterated that the police said they could not help and so they tried to ignore him. The applicant said the man then started attacking them. When asked how he attacked them, she said he called them persistently, demanding they pay 4 million yen (the equivalent of AUD47,920). When asked, she said this occurred 12 or 13 years ago, commenting that she has been in Australia for more than 10 years now.
When asked the name of this man, the applicant said she could not remember his first name but the family name is [deleted]. When queried that in her protection visa application he is referred to as [Mr A], the applicant said that is how it reads. She indicated the incidents occurred before she came to Australia for the second time, in June 2012 (she first visited in May 2005), commenting that she decided not to go back to Japan.
The Tribunal asked what this man did when they did not give him 4 million yen. She said he came to visited them a few times and they argued. She again stated they went to different police stations but were told by the police that they could not help them.
The Tribunal asked the applicant why they thought this man was a Yakuza member. She replied that while he sounds quite legitimate, nothing he said was legitimate. She added that many times he hinted he could enlist the help from the underground world so they thought he must be Yakuza.
The Tribunal asked the applicant if she had any copies of police reports. She said she wasn’t given anything by the police. She also indicated she did not get any legal advice in writing but noted that she has advice from the council member.
The Tribunal observed that the support letter by [Ms D] states that the house (of her [aunt)) had been taken over by [Mr A] and asked why, in that case, would he continue to harass her. She said she does not know the detail, commenting that she did not know he had taken possession of the house.
The Tribunal indicated that it had considered various country which indicates that while organised crime and the Yakuza are an issue in Japan, overall Japan has a very low crime rate. The Tribunal observed that Freedom House, in its Freedom in the World report, rates Japan very highly, at 96/100, just one point behind Australia which is rated 97/100. In relation to the rule of law, Freedom House comments that violent crime rates are low, the judiciary is independent, and constitutional guarantees of due process are generally upheld. The report does note that organized crime is fairly prominent, particularly in the construction and nightlife sectors and that crime groups also run drug-trafficking and loansharking operations. The report also notes that police can detain suspects for up to 23 days without charge.[7] The Australian government’s travel advisory for Japan also states that the crime rate is low, but notes that petty theft occurs and warns Australian travellers to be careful in bars and nightclubs.[8] Similarly, advice from the US Government indicates that the risk of crime in Japan is very low, with national crime rates well below those in the USA.[9] Other reporting indicates that police in Japan are well paid, have a strong presence and are very meticulous in their investigations.[10] The Tribunal commented that, given the country information regarding the Japanese police, it seems surprising that police would not have taken reports from elderly women who claim to have been threatened by someone seeking to extort money from them, and that police would not have at least spoken to that person and warned them that they were being watched.
[7] Japan: Freedom in the World, Freedom House, 2021, Smartraveller, Japan, Japan Travel Advice & Safety | Smartraveller
[9] Japan 2018 Crime & Safety Report: Tokyo, OSAC, 22 February 2019, ‘Japan’s crime problem? Too many police, not enough criminals’, Irish Times, 6 April 2018, >
The applicant commented that she finds most of the government’s publications untrue as they want to protect their reputation. She reiterated that they went to three police stations but police refused to assist them. She added that a person has to spend a few years in Japan to know what it is really like there. The Tribunal observed that in her protection visa application she indicated that she was worried about threats, including threats of violence, having commented that she experienced harm in the form of threats, stalking and intimidation (sic) of physical harm. The Tribunal commented that it seems that police would see some offence in that and would have the capacity to act. The applicant restated that police flatly refused to act, saying there is no criminality.
The Tribunal asked the applicant why they did not consider selling the house they were living in and relocating to another part of Japan if they were being harassed by a distant relative. She replied that she and her sister decided to move to Australia because their children studied in Australia.
The Tribunal asked the applicant why she did not seek protection in Australia earlier, such as when she came in 2012. She indicated she did not really know, adding that it is the matter of another country.
The Tribunal asked the applicant where she stayed in Japan when she returned in September 2012 and February 2013. She said she stayed with a friend, commenting that she was still working. The Tribunal asked if she went back to her sister’s house in [City 1]. She indicated she did not, commenting that as of June 2012 she thought her sister’s house was for sale and was eventually sold. The Tribunal queried that [Ms C] has indicated in her statement of October 2016 that she was renting the house. The applicant commented that she does not know a great deal about that as it was not her property. She said she went back for her work [for] her friend’s business [and] stayed with her friend. When asked if she was concerned for her safety she said she was but said she tried to stay at home and when she had to go out to visit [places] she used the car. She said she stayed in [a location] in Fukuoka Prefecture. Observing that the delegate’s decision record (a copy of which she provided to the Tribunal) indicates she had relatively long stays back in Japan in 2012 (6 weeks) and 2013 (11 weeks), the Tribunal commented that this seems inconsistent with her claims to fear for her safety if she returned to Japan. The applicant reiterated that she didn’t go out and when she had to go out for work her friend would pick her up in her car.
In his evidence the applicant’s adoptive son, [Mr E], indicated that he wished to comment on the information regarding crime in Japan and the effectiveness of the Japanese police. He said in [City 1] city, where they are from, is near to [a] city, which is where his mother’s aunt lived, which is a really rough area where there are a lot of Yakuza as well as a lot of other very dangerous people. He also asserted that stalking is a major issue in Japan and a lot of people have been killed because the police don’t do anything when reports are made about stalking, saying if there has not been any physical abuse just people coming to the front of the house or making phone calls, these are not issues police can take action on. He said last month there was news that a young girl had been killed by a stalker and these reports occur every month from different areas. He indicated his mother was asked by police whether the man had attacked her, while he felt they should be acting to protect her before things happen. He asserted that internet reporting indicates that a lot of people are murdered by Yakuza and others in Japan. When the Tribunal put to [Mr E] that Japan has one of the lowest murder rates in the world, he indicated that it may be low compared to other countries but individual circumstances need to be considered. He commented that [Mr B], the son of the applicant’s aunt, died after [Mr A] got involved with the family, but no-one investigated the matter and asked how can he protect his mother if he can’t keep her close to him and support her.
The Tribunal asked [Mr E] and the applicant’s niece[why] the applicant did not apply for a protection visa earlier and why they allowed her to return to Japan in September 2012 and February 2013 if she was being harassed, stalked and threatened by [Mr A]. [The applicant’s niece] said they were actually in Japan at the time and [Mr E] was moving between Japan and Australia. She said the main people who were involved were her mother (the applicant’s [sister]) and the applicant who were dealing with their aunt’s ‘stuff’. She said they did not really explain exactly what they were experiencing because they did not want their children to know everything so they would worry about them when they returned to Australia. She said she was really surprised when she later read her mother’s diary which outlined what had happened.
[The applicant’s niece] commented that the applicant was not answering the questions she was asked correctly. The Tribunal asked [the applicant’s niece] if she can tell the Tribunal where the applicant did not answer correctly and what the correct account is. [The applicant’s niece] said there may have been translation issues with the letter from [Ms D] because [Mr A] did not have a right to inherit the house. She said their aunt’s share of the house was 180,000 yen but [Mr A] snatched about 9 million yen without anyone knowing where it had gone. She added that her mother and the applicant had been able to keep about 4 million yen for their aunt, for whom they were acting as guardians, because the aunt’s son had mental health problems and was in and out of a psychiatric unit, and that was the money [Mr A] was seeking.
[The applicant’s niece] commented that while her mother’s house has now been sold, it definitely had not been sold in 2012. She said she remembers that her mother returned to Japan because of her [work].
The Tribunal commented that a new submission has not been provided that sets out what happened and when, which means the Tribunal has sought to piece together what occurred from the existing supporting statements, which are all five years old, and one of which indicates that someone was living in [the applicant’s niece]’s mother’s house in October 2016. The Tribunal commented that it would be helpful if a new statement could be submitted that addressed the protection claims. [The applicant’s niece] asked if the Tribunal had the translation of her mother’s diary. She indicated she thought it had been provided to the previous legal representative (who is now deceased) six years ago, for submission as evidence. The Tribunal indicated that this was not among the information currently before it. The representative advised that she would take instructions following the hearing and submit any further relevant information.
[The applicant’s niece] commented that her mother and the applicant actually spoke with a private detective who told them that it is a civil matter so the police could not intervene. The Tribunal commented that things mentioned in the statement of claims, such as threats of violence, would seem to be outside what might be considered a civil matter, and become criminal matters. [The applicant’s niece] commented that the scammer was smart and knew how not to get traced. She said the aunt’s husband also was attacked and punched by [Mr A] but was scared to report that to the police, so the police had no idea that actual physical harm had occurred. She added that the aunt’s son had a mental illness which became worse due to that, and he passed away. The Tribunal observed that one of the supporting letters provided to the Tribunal indicates that the son ([Mr B]) died of pneumonia.
Noting that concerns regarding COVID-19 had been raised in submissions, the Tribunal asked if the applicant has been immunized against COVID-19. [The applicant’s niece] indicated the applicant has not as she is opposed to being vaccinated. The Tribunal noted that as a consequence she is equally at risk of COVID-19 in Melbourne. [The applicant’s niece] commented that the applicant has family in Australia to care for her but if she returns to Japan she has no home and no-one to care for her, so someone from the family in Australia would have to return with her to care for her.
The Tribunal observed that country information indicates that Japan, which has the third biggest economy globally, has good aged care, health care and welfare systems.[11] [The applicant’s niece] commented that in Japan a lot of elderly people are dying alone without people being aware. [Mr E] added that the suicide rate among the elderly in Japan is high. While adding that they are not looking to access the welfare system in Australia, [the applicant’s niece] commented that the care system in Japan is not as good as in Australia.
Post-hearing submission
[11] ‘Japan’s care sector protects quality of life for the country’s elderly population’, Equal Times, 25 May 2020, >
On 26 October 2021 the representative provided a post hearing submission and relevant supporting documents.[12] The supporting documents comprised:
·A copy of a document (and English translation) prepared by the applicant’s sister[on] 25 September, setting out the issues (titled ‘Summary of the Facts’) in relation to [Mr A], with an associated timeline. This indicates that [Mr A], who had debts, drew close to the applicant’s aunt [and] her husband [and] gained their authority to sell their house. [Mr A] sought to retain all proceeds but the applicant took 4 million yen which was used to pay debts owed by the applicant’s aunt and her husband. The applicant went to see [Mr A] who indicated he had been conned and threatened by the Yakuza. The applicant and her sister were advised by a detective not to get involved in the matter, as it was a civil matter and police could not intervene unless there was physical abuse and they could put themselves in danger. [Mr A] also subsequently took control of the affairs of [Mr B], the son of the applicant’s aunt.
·A statement (and English translation) dated 15 October 2021 by the applicant’s sister[adding] to the previous summary of facts. This indicates that the [Ms C’s] started living in her house in [City 1] city in or around 2013. The house was sold in or around 2019, after the [Ms C’s family] moved out. She comments that she heard in November 2019, when she was last in Japan, that [Mr A] was still trying to escape the Yakuza and had money troubles, which made her think she was too frightened to live in Japan again. She also comments that, because of the applicant’s age, it would be impossible for her to live by herself in Japan.
·Relevant excerpts from [the applicant’s sister]’s diary (and English translation).
·A statutory declaration of 25 October 2021 by [the applicant’s niece] indicating that [Mr B] escaping from his hospital and begging the applicant and her sister [to] rescue him from [Mr A] was the main reason why the applicant and her [sister] decided to leave Japan. She also comments on the activities of the Yakuza in Japan, her concern regarding the applicant’s cognitive deterioration and capacity to support herself if she returned to Japan, and the phenomenon of Kodokushi (or lonely death) among the elderly in Japan. Attached were articles regarding the Yakuza in Japan and Kodokushi.
·A further statement dated 21 October 2021 (and English language translation) by [a] Member of the [City 1] City Assembly, regarding the tolerance of organized crime groups in japan and shortcomings in the social security system.
Assessment
[12] See the Tribunal file.
Having considered the medical reports provided, the applicant’s oral evidence, [the applicant’s niece]’s comments on the applicant’s evidence, and the supporting statements provided pre- and post-hearing, the Tribunal considers that the applicant’s oral evidence was affected by her age and health conditions, including the diagnosis of mild dementia (and consequent decline in her cognitive capabilities). The Tribunal has, therefore, given limited weight to the applicant’s oral evidence where it conflicts with other evidence provided. In this regard, the Tribunal finds that the central matter in this case is to do with the activities of [Mr A] in gaining control over the affairs of the family of the applicant’s [aunt] (including her husband [and] son, [Mr B], including the sale of their home. The Tribunal also accepts the written evidence subsequently provided indicating that the home of the applicant’s sister [where] the applicant lived with her sister before coming to Australia in June 2012, was sold in or around 2019, after the family of [Ms C] moved out.
Considering all the available evidence, the Tribunal accepts that [Mr A], the nephew of [the applicant’s uncle], conned the family of [the applicant’s aunt and uncle] into giving him control of their affairs, for his own personal gain. The Tribunal accepts that he may at some point have used physical violence or intimidation in relation to [the applicant’s uncle] and [Mr B] to achieve these ends, when they attempted to resist his control of their affairs.
Noting the evidence from [Ms C] indicating that she was told by the hospital at which [Mr B] was a psychiatric inpatient that he had died of pneumonia, the Tribunal does not accept any suggestion that [Mr B] was murdered by [Mr A].
The Tribunal finds that there is nothing conclusive that has been put forward to indicate that [Mr A] himself was a member of the Yakuza but accepts that he may have been indebted to Yakuza (as has been suggested), or may have had associates who were members of the Yakuza.
The Tribunal finds the evidence indicates that police were not able to act against [Mr A] because he obtained the legal agreement of [Mr A’s] family for his actions, and no member of [Mr A’s] family was prepared to report to police that they had been beaten and threatened by [Mr A]. Accordingly, police saw the issues in relation to [Mr A] benefitting from the sale of [Mr A’s] house as civil matters.
The Tribunal accepts that the evidence indicates that the applicant and her sister [became] involved in the matter when their aunt[contacted] them about [Mr A]’s actions. The Tribunal finds the evidence indicates that when they spoke with [Mr A], he told them it was none of their business. The Tribunal accepts they sought advice from police and a private detective and a lawyer from a legal advice service provided by the council, and while their aunt may have been conned, were advised that it would be difficult to prove fraud due to lack of evidence.
The Tribunal accepts that, as per the ‘Summary of the Facts’, prepared by [in] September 2015, the applicant may have been able to secure 4 million yen from the sale of [Mr A’s family] house in around 2010-2011 and used that money to pay debts owed by [Mr A’s] family and for their immediate living costs, to the displeasure of [Mr A]. The Tribunal notes, however, that this document indicates that the applicant had no further contact with [Mr A] for several months, until she went to see him in 2011, at which time they argued. It is claimed that [Mr A] began contacting the applicant frequently from around January 2014, asking about the whereabouts of the 4 million yen, and once verbally threatened her, yet when the applicant again intervened in [Mr A’s] family affairs in 2012, [Mr A] demanded she stop interfering in his family’s affairs and stop bothering him. Despite claiming that [Mr A] continued to intimidate [the aunt] and the applicant about the 4 million yen in 2012, including coming to see them ‘accompanied by a man who described himself as an attorney, but who looked obviously like a gangster’, and making claims regarding involvement of the Yakuza, and claims that [Mr A] had a gun, the applicant did not come to any harm over the period from when the house was sold until she came to Australia in June 2012. The Tribunal finds this is inconsistent with the claims that the applicant faces a real risk of harm from [Mr A] and/or Yakuza members.

The document states that because the applicant and her sister [did] not want to cause their children any unnecessary concern, they did not consult with the children about [Mr A] at all. This was also raised by the applicant’s niece at the hearing when queried why the applicant did not make a protection visa application when she came to Australia in June 2012, and why the family allowed her to return to Japan in September 2012 and February 2013. The Tribunal considers, however, that if the applicant and her sister had serious concerns for their safety at the hands of [Mr A] and/or Yakuza members in Japan, they would have raised these concerns with their children in Australia much earlier than was the case.
As discussed at the hearing, the Tribunal also finds the preparedness of the applicant to return to Japan in September 2012 for over six weeks and again in February 2013 for around 11 weeks, to undertake [work], to be inconsistent with her claims to fear serious or significant harm from [Mr A] and/or Yakuza members in Japan. Similarly, [her sister]’s evidence that she last returned to Japan in 2019 seems inconsistent with claims to be concerned about risk of harm from [Mr A] and Yakuza members in Japan.
[Ms C] indicated that she and her family were renting the house where the applicant had lived with her [sister], after they left for Australia, and commented that they changed the phone number due to frequent silent calls and had seen ‘a suspicious car’ parked out the front with someone trying to look into the house for one or two months. Despite this, [Ms C] did not indicate she or her family were ever confronted or threatened by anyone, or asked regarding the whereabouts of the applicant and her sister, at this time or subsequently up to the time of the statement in October 2016 (in which she indicated they were still renting the house). The Tribunal also finds this inconsistent with the suggestion that the applicant is at risk of harm from [Mr A] and/or members of the Yakuza should she return to Japan. It would have been a simple matter for [Mr A] and/or Yakuza members to knock on the front door and ask directly about the whereabouts of the applicant if they were desperate to locate her.
Given the above; and noting the passage of time (ten years since [Mr A’s family’s] house was sold in around 2011), the likelihood that [Mr A] would long since have given up any hope of recovering the 4 million yen which he was repeatedly told ten years ago had been used to repay [Mr A’s] family debts, and that the applicant no longer has a home known to [Mr A] that she would return to in [City 1] City, the Tribunal does not accept that there is a real chance that she would suffer persecution involving serious harm from [Mr A] and/or members of the Yakuza or anyone else, should she return to Japan now or in the reasonably foreseeable future.
Concerns also have been raised regarding the applicant’s fear of dying alone and her capacity to live by herself and support herself in Japan given her age ([age] years) and the diagnosis of mild dementia and the associated decline in her cognitive capabilities. The Tribunal accepts that the applicant does not have close relatives in Japan with whom she has a relationship and who might accommodate and care for her. The Tribunal accepts that, as indicated by the applicant’s niece, a family member would likely have to accompany the applicant to Japan to care for her, or alternatively, she would need to be placed in an aged care facility. While the Tribunal accepts that the applicant’s family members in Australia do not want the latter outcome, the Tribunal considers this is a reality they may have to accept. Noting the applicant receives a Japanese pension, and that family members have indicated that they would support all her expenses in Australia, and that her adopted son sought to sponsor the applicant for a Contributory Aged Parent visa, the Tribunal considers that the applicant’s family members in Australia have the financial capacity to support the applicant in Japan, to the extent that there are additional costs not covered by the Japanese aged care, health and welfare systems which, as discussed at the hearing, are of high quality. The Tribunal does not accept that the applicant faces a real chance of suffering persecution involving serious harm because she would be denied appropriate aged care, health care or welfare services, for one or more of the five reasons set out in s.5J(1)(a) of the Act, should she return to Japan.
The Tribunal has considered the concerns raised about Kodokushi (or lonely death) and suicide among the elderly in Japan. The Tribunal accepts that these are genuine phenomena which are a consequence of low birth rates and the high average life expectancy of Japanese (country information indicates the elderly constitute 30 per cent of the Japanese population, or 36 million people, and this has resulted in a rapid shift from the tradition of caring for the elderly within families to assisted care, supported by a social care system that provides cover in the last stages of life).[13] The Tribunal considers that the applicant’s family members can mitigate the risk of the applicant dying alone or feeling suicidal by ensuring she is either supported by a family member or is placed in an aged care facility in Japan. The Tribunal does not accept that the applicant faces a real chance of suffering persecution involving serious harm because she would be denied appropriate aged care, health care or welfare services and would be left to die alone, or would be suicidal, for one or more of the five reasons set out in s.5J(1)(a) of the Act, should she return to Japan.
[13] ‘Japan’s care sector protects quality of life for the country’s elderly population’, Equal Times, 25 May 2020, >
The Tribunal also notes that concerns were raised about COVID-19. As observed at the hearing, the applicant, who has chosen not to be vaccinated against COVID-19, faces a similar risk to catching the virus in Australia as she does in Japan, and can mitigate this risk by being vaccinated. The Tribunal does not accept that the applicant faces a real chance of suffering persecution involving serious harm because she would be denied vaccination or exposed to the risk of catching COVID-19, for one or more of the five reasons set out in s.5J(1)(a) of the Act, should she return to Japan.
Refugee criterion
Given the Tribunal’s findings above, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm at the hands of [Mr A], Yakuza members, the Japanese authorities, or any other agency, organisation, group or individual, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should she return to Japan now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Japan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[14]
[14] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Japan, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from [Mr A] and/or Yakuza members, Japanese authorities, or any other agency, organisation, group or individual.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
In reaching the above conclusion, the Tribunal finds that any hardship the applicant might experience if removed to Japan, including feelings of mental pain and suffering/emotional distress if she was to be separated from her family members in Australia, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing her to suffer significant harm.
Member of the same family unit
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
Request for consideration under the Minister’s s.417 intervention power
The applicant has requested through her representative that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 which gives the Minister discretion to substitute for a decision of the Tribunal, another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The representative submits that the matter is one that comes within the relevant Ministerial guidelines for the purposes of intervention under s.417 of the Act, noting that the following guidelines in particular are most relevant to the applicant:
·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
·Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
·Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.
Having considered the applicant’s case and the relevant Ministerial guidelines, the Tribunal considers there is merit in this view and will refer the matter to the Department.
In doing so, the Tribunal notes that, but for the matter of the sponsor’s age when he was adopted, it is likely that the applicant would have met the remaining criteria for a Contributory Parent visa. As noted above, under Australian migration law, even though the adoption is recognised in Japan, the applicant could not meet the definition of an Aged Parent, sponsored by her adopted son, because he was aged [age] years at the time of the adoption. Australian migration law specifies that an adoption is not regarded as an adoption for migration law purposes if it took place after the adoptee turned 18 years of age. The parties have submitted articles indicating that in Japan adult adoption is a common practice and that one third of adopted people are adults. This is particularly done when the family does not have male descendants to carry on the family name.
The Tribunal also notes that at the time of Contributory Parent visa application, the sponsor, [Mr E], had provided evidence of having in his account in excess of $200,000, available for the purposes of paying for the Contributory Parent visa.
Background
The applicant is the maternal aunt of [Mr E]. She came to Australia in 2012 principally to visit her now adopted son and his family and has lived with [Mr E] and his family full-time in Australia since April 2014.
It has been argued that the applicant ought to be considered the aged parent of [Mr E], because she raised him from a young age and financially supported him to be able to study in Australia at [school] from the age of 15 years.
Compelling evidence was submitted previously that the applicant’s sister (the biological mother of [Mr E], [the applicant’s sister]), had to hand over primary care of her son to her sister, the applicant, because she was required to work to maintain her family due to [Mr E]’s biological father having succumbed to alcoholism, which led him to being abusive an abusive father; on one occasion the abuse was so severe that [Mr E] had to be hospitalised.
The applicant provided her sister’s son with a safe and nurturing environment and protected him from an otherwise dysfunctional and aggressive home life. At an early age [Mr E] broached the subject of his aunt adopting him formally but his father reacted badly to the idea, even though [Mr E]’s relationship with his aunt was for all intents and purposes, a child-mother relationship. [Mr E]’s relocation to Australia when he was 15 years of age was in part, an attempt to remove him geographically from his father’s reach. The applicant has indicated to the Tribunal previously that she was not wealthy but worked three jobs in Japan to be able to support [Mr E]’s studies in Australia. She was also his legal guardian for the purposes of his study here.
[Mr E]’s biological sister in Australia[also] studied in Australia to flee her home life. In 2013 she sponsored her mother (and [Mr E]’s biological mother) on a Contributory Parent visa. The extended family is now reunited in Australia barring the applicant who would have to return to Japan and be on her own without the support of the adopted son she invested in significantly.
The applicant is now nearly [age] years old. She was married but is now divorced; was herself the victim of family violence, and she and her former husband had a child but when the child was three years old she gave up the child to her parents. As an adult, her son now does not want to have anything to do with her. It has been argued that her own need to relinquish her son to shield him from violence led her to developing a strong tie with her nephew/adopted son.
The applicant’s health
A previous psychiatric report, dated 21 May 2015, indicated that the applicant was diagnosed with adjustment disorder with mixed anxiety and depression which is a direct product of her inability to remain in Australia with her adopted son. The psychiatrist stated that if the applicant were forced to return to Japan on her own her condition would become aggravated.
More recently, her physician has indicated that the applicant has symptoms of mild dementia, and her family members have referred to noticeable signs of decline in her cognitive capabilities, causing them to express concern that she is no longer capable of living alone without family or other support. The family has expressed considerable distress at the thought that the applicant might die alone in Japan.
The Tribunal notes that, despite her own difficulties, the Tribunal previously has sighted evidence of the applicant making a contribution in terms of assisting overseas Japanese students who come to Australia, by providing them with emotional and mental support as well as a social network to encourage them in their studies.
The applicant’s family members
The applicant’s adopted son, [Mr E], is a highly skilled qualified [occupation] and successful [in] Australia. This is due largely to the applicant’s support.
Additionally, his contribution to the Australian community has been [recognised]. Evidence has been submitted that he received the Award in December 2015 for his actions in December 2012 when he assisted in the rescue of a [man]. [Details deleted].
The applicant’s niece[has] indicated that if the applicant had to return to Japan on her own then the extended family may need to go back with her. [The applicant’s niece] does not, however, wish to leave Australia. Evidence has been submitted which shows she is a highly skilled senior [occupation] who has worked in [her field] for almost a decade, whose supervisors and colleagues speak highly of her. Her [Manager] provided a letter in 2015 stating that she is highly skilled [and] is an “excellent role model for undergrad students” whom she supervises.
The family is seeking that the applicant not be sent to live on her own or in an aged care facility without family in Japan when her adopted son and extended family members in Australia can provide for her without difficulty.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

‘Walking the beat in Japan, a ‘heaven for cops’’, CBS News, 6 June 2021 in the Land of the Rising Sun – Japan’, Fundamentals of Criminal Justice: A Sociological View, Barkan, S & Brviak, G, 2011, Fundamentals of Criminal Justice: A Sociological View - Steven Barkan, George Bryjak - Google Books

[2021] AATA 5267

12 November 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction